CITY OF DODGE CITY v. HADLEY4/18/1997
n evidence as to sanity. See State v. Randol, 212 Kan. 461, 468, 513 P.2d 248 (1973) and
cases therein cited; State v. Truskett, 85 Kan. 804, 821, 118 P. 1047 (1911); State v. Beuerman, 59 Kan. 586, 589, 53 P. 874 (1898); and see K.S.A. 60-456. The weight to be given such testimony, as well as the weight to be accorded expert testimony, is for the jury to determine. State v. Randol, 212 Kan. at 468; and see State v. Sanders, 225 Kan. 147, 587 P.2d 893 (1978)." 225 Kan. at 137.
Lay witnesses' opinions as to intoxication were permitted in State v. Townsend, 146 Kan. 982, 986, 73 P.2d 1124 (1937). This court said:
"Appellant next argues that the court erred in permitting any of the witnesses to testify that he was under the influence of intoxicating liquor. If the fact was observable to those who soon came to the scene of the collision no reason suggests itself to exclude it, any more than to exclude testimony of other pertinent facts." As with expert testimony, the admission of lay opinion testimony lies within the sound discretion of the district court. Smith v. United Technologies, 240 Kan. 562, 565, 731 P.2d 871 (1987).
In the present case, following the defendant's objection, the trial court inquired of counsel for the City if he was attempting to qualify the officer as an expert. Counsel responded, "To give his opinion, yes, Your Honor." The court then overruled defendant's objection. The trial court allowed the officer to render an opinion as an expert on the defendant's intoxication and his ability to safely operate a motor vehicle.
In State v. Carr, 230 Kan. 322, 324-25, 634 P.2d 1104 (1981), this court found no error in allowing an officer to give such an opinion as an expert:
"Officer Masters had an opportunity to observe Thomas Carr briefly in the bedroom and at some length during the arrest procedure. Masters' qualifications as an expert were established. He had been with the police department a number of years and, in the course of his work, had had an opportunity to observe intoxicated persons. In allowing Masters to testify, the trial judge observed, `Police officers soon become experts on intoxication and the degrees and level thereof.'
"Masters testified that upon initial contact Carr had an odor of alcohol on his breath but was not intoxicated to the state he didn't realize what he was doing or where he was. The trial court allowed similar expert testimony from Officer Marceau and received lay opinions reaching a contrary conclusion as to Carr's intoxication.
"The basis for admission of expert testimony is the need to assist the trier of fact. State v. Reed, 226 Kan. 519, 521, 601 P.2d 1125 (1979); Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978). In allowing Masters'
expert testimony, the court as trier of fact apparently felt the testimony would be of assistance. This court has often held the admissibility of expert testimony lies within the power of discretion of the trial court, and the trial court will not be reversed on appeal absent a showing of abuse of the exercise of that power of discretion. State v. Washington, 229 Kan. 47, 56, 622 P.2d 986 (1981); State v. Reed, 226 Kan. at 521; Plains Transp. of Kan., Inc. v. King, 224 Kan. at 21. We find no abuse of discretion in allowing Masters to testify."
Unlike Steadman, the officers in the present case are not expressing an opinion that the defendant is guilty. Also, unlike Steadman, this case was tried without a jury and, as the trial judge pointed out, he would presume that the officer believed the defendant was under the influence because he issued th
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